The First January 6 Select Committee Hearing

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A Primer on What we Know and What to Look for As the January 6 Hearings Unfold

On Thursday morning, NBC Think published my summary of what we know so far, and what to look for as the series of hearings unfold. You can read it on the NBC site, or here:

The House select committee investigating the Jan. 6 insurrection spent almost a year deposing 1,000 witnesses, collecting 140,000 documents, examining videos and following leads. Except for a few leaks (noticeably increasing in frequency over the past few weeks) and clues from court filings, the committee has kept much of its findings under wraps.

The committee is calling these proceedings hearings, but they shouldn’t be confused with a judicial hearing in which a court examines and weighs evidence and reaches a verdict. In the upcoming presentations, the judge and jury will be the American people.

It’s first worth refreshing our memories before the hearings start, because, in fact, we already know a great deal about the lead-up to Jan. 6, and how the events unfolded.

We know, for example, that the efforts to overturn the election began early in 2020 when the coronavirus pandemic upended normal life and led states to promote voting by mail. Then-President Donald Trump spent months sowing seeds of doubt about mail-in ballots (a voting method that coincidentally was predicted to be favored by Democrats). This allowed Trump to falsely declare himself the winner on election night. “This is a fraud on the American public,” Trump claimed as ballots were still being counted. “This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election.” The day after the election, as more of the mail-in ballots were counted and Biden’s lead increased, Trump falsely claimed that his “lead shrank” as “fraudulent” mail-in ballots were counted. (Trump never, in fact, led in the electoral count vote.)

After the election, Trump associates launched dozens of lawsuits alleging voter fraud. These claims were widely rejected by the courts — but that didn’t stop Trump, the Republican National Committee and other groups from using lies about election fraud to raise hundreds of millions of dollars.

Simultaneously, in what has been called the fake elector scheme, seven groups of state Republicans signed comments presenting themselves as duly authorized electors (they were not duly authorized).

Meanwhile, with the inauguration on the horizon, Trump led a pressure campaign against various state governments and federal agencies, including the Department of Justice, to help him stay in office. On Dec. 27, Trump told the DOJ to “just say the election was corrupt and leave the rest to me and the R. Congressmen.” He also pressured Republican leadership in key states, most famously, perhaps, on Jan. 2, when he and White House chief of staff Mark Meadows tried to get Georgia Secretary of State Brad Raffensperger to “find” more Trump votes.

Former Chapman University law professor John Eastman and lawyer Kenneth Chesebro wrote memos for Trump’s inner circle falsely stating that under the Constitution, Vice President Mike Pence had the authority to throw out electors and prevent Joe Biden from being certified as the next president. Trump used these bogus legal theories to apply enormous pressure on Pence to comply with the plan.

And that was all before Jan. 6. On that day, the date Congress — with Pence presiding — was set to certify the election, Trump directed the crowd at the Ellipse toward the Capitol. Leaders of the Proud Boys and Oath Keepers militia groups who stormed the Capitol have since pleaded guilty to seditious conspiracy and admitted that they intended to use violence to prevent the peaceful transfer of power. While the violence was unfolding, Trump resisted pleas to call off the insurrectionists.

That’s a lot of information, and it paints an ominous picture. But of course, while there is much we do know, there remain questions the committee may be able to answer:

• Are there direct or indirect lines between the top of the Republican hierarchy and what Rep. Jamie Raskin, D-Md., calls the “violent hooligans and street fascists” who stormed the Capitol?
• Did high-ranking Republicans or members of Trump’s inner circle know (or suspect) in advance that the Capitol would be breached?
• Did any high-ranking Republicans take any steps either in advance of the attack or during the attack to facilitate the breach?
• Did Trump know that he had lost the election and that his claim of fraud was, in fact, a fraud?
• Did other groups that fundraised using the election fraud lies know that they were lies? (In other words, did they intentionally perpetuate a fraudulent money-making scheme?)
• Who funded the insurrection?
• Did Eastman and Chesebro know that Pence did not, in fact, have the authority to halt the counting of the votes and prevent Biden from being declared the winner?
• Was Trump personally or directly involved in the false elector scheme?
• Did senior military officials avoid sending federal troops to protect the Capitol out of concern Trump might invoke the Insurrection Act?

What we won’t learn from the hearings is whether Trump or any other high-level politicians are definitively guilty of crimes. This is not a criminal trial. The select committee, as a legislative body, has different goals. Their stated goals are to learn the truth about what happened, to present that truth to the American people and consider legislation to prevent additional attacks.

The Jan. 6 attack on the Capitol was carried out with the intention of preventing the peaceful transfer of power and upending democracy. The American people, therefore, deserve to know the entire story of how it happened and who was responsible.

On Wednesday, the day before the hearings, committee member Rep. Adam Schiff, D-Calif., promised that the hearings will “present new and publicly unknown information” that will “demonstrate the multipronged effort to overturn a presidential election, how one strategy to subvert the election led to another, culminating in a violent attack on our democracy.”

We will thus be looking to the select committee hearings to fill in the gaps of an already harrowing story. Again, to quote Schiff, “It is a story that must be told, to make sure it never happens again.”

Media Appearance #1: June 9th

Before the hearing, I appeared on NBCLX news. You can see the clip here. Here is an edited-down version of the transcript.

Q: “Let’s set the backstory here. Is this committee just kind of fact-finding, or is it supposed to find and announce things that could lead to criminal charges?

Congress can, and probably will, make criminal referrals to the Department of Justice, but that isn’t the point of the hearings, and if we start thinking that it is, we may miss the goal.

Investigating what happened and putting the truth in front of the American people, and getting Americans to engage in a dialogue about the dangerous elements that led to the insurrection is the goal. That’s not the goal of a criminal proceeding.

As an aside, I’ll mention that the task of the DOJ is considerably harder than the task of the committee: It’s easier to show that behavior is reprehensible and morally wrong than it is to collect evidence to show each element of a crime beyond a reasonable doubt.

It’s important that we separate these functions.

Q: A lot of the “engagement,” at least from one side, is directed at Merrick Garland. He’s catching a lot of heat on social media for not doing enough. Is that a fair assessment, or is there another story behind the scenes, behind the headlines?

The “other story” isn’t even behind the scenes or behind the headlines. It’s happening in plain sight.

The DOJ has repeatedly said it is starting with the obvious crimes right in front of it (like assaulting a police officer, destroying property at the capitol) and then working up by following the facts. The DOJ has already indicted and gotten guilty pleas from leaders of the white supremacy militias groups that carried out the attack, including planners who were not present at the insurrection.

We have evidence in the public reporting that the DOJ has issued subpoenas asking for communications with Donald Trump. They’ve also issued subpoenas looking at fundraising.

A Congressional committee, in contrast, goes right for the top.

Q:  A lot of people out there are wondering how far this is going to go. Do you think there is a world in which Donald Trump or members of his inner circle could actually be charged with a crime?

A: I do, but people have to understand is that a criminal investigation and any criminal proceedings are not as simple as they look. Trump is very good at shielding himself. It’s always easier to get the people who committed the crime on camera in front of witnesses than it is to get the planners. It’s easier to get the murderer than the person who hired the murderer.

We know this from the Godfather: The top people in a mob give their orders in private, and they don’t put things in writing.

It’s hard to prove guilt beyond a reasonable doubt in a criminal proceeding, and that’s time-consuming, so what the DOJ is managing to do right now is get guilty pleas from people who are up from the bottom. Members of the white militia groups who were part of the planning are pleading guilty and offering to cooperate.

It’s a lot easier to get to the people at the top if the people in the middle are cooperating and turning over evidence.

Q: As you were going through your answer we were showing these clips from January 6. Can you really blame people who saw what happened that day and here we are a year and a half later, and we have midterm elections around the corner, can you really blame people for being upset when they see people going on probation, getting a slap on the wrist, some of them are even running for office right now? What do you say to the American people who are seeing this and becoming impatient?

First: the criminal justice system is not designed to solve a political problem.

Even though America has a large prison system, first-time offenders who have simply trespassed or destroyed property, don’t get long sentences.

There is no doubt in my mind that Donald Trump stirred up that crowd and got them to attack the Capitol. It’s a different matter to prove that beyond a reasonable doubt.

As far as the impatience, compared to similar investigations, this is going quite quickly. The Department of Justice has said this is one of the most labor-intensive, resource-intensive, complex investigations in our history.

So they’re working their way up, trying to be careful, getting all the evidence they need so that they are not in a situation where a person gets acquitted at a trial. We saw what happened with Kyle Rittenhouse. O.J. Simpson was acquitted.

They can’t start at the top by saying, “We all know he’s guilty.”

First, this would make the prosecution appear politically motivated. Moreover, the rules of evidence don’t work like that.

Q: I think what’s on the mind of a lot of people is if the DOJ is only going to take cases they are sure they are going win, they’re not going to take a case all the way up to the top.

The DOJ has standards they follow, and that is not the standard. When they bring an indictment, the standard is that they must believe they have evidence beyond a reasonable doubt to prove guilt.

What they’re looking for right now is evidence that meets a certain standard. “We all know he is guilty” is not enough “evidence” to bring charges.

Q: I guess you could say that evidence that proves beyond a reasonable doubt would be an indication that they think they can win the case.

NBC Mini-Essay after the Hearing

On Friday, NBC Think asked me to write a mini-essay about my impressions after the hearing. You can see it on their website, or here:

As I noted in my THINK piece, Thursday’s hearing kicked off what should be an explosive investigation into one of the biggest threats to American democracy in decades.

So far, the committee seems more than ready to connect many of the existing dots. To take one explosive detail, the committee claimed to have eyewitness testimony that, as the violence was unfolding, Trump didn’t want the attack to stop and said that maybe the mob had “the right idea.” It also promised evidence that multiple Republican congressmen sought presidential pardons for their actions concerning the attack. This clearly suggests consciousness of guilt.

There is still much to learn, of course, but a foundation has been laid. Over the next days and weeks, the committee’s task is to both fill in any outstanding gaps in our knowledge of the insurrection and propose solutions to make sure another never happens again. And perhaps most importantly, the committee needs to answer this question: Did Trump, members of his inner circle, or high-ranking Republicans know or have reason to know that the Capitol would be breached?

Caroline Edwards, Hero

I thought the hearings were extremely well done and effective. Particularly powerful was officer Caroline Edwards’ testimony about how she held back the crowd with a bike rack and suffered a concussion when the mob knocked her down. Even though she was injured she picked herself up and administered first aid to officers who were even more seriously injured.

When she was holding back the crowds, she said she was under no illusion that she could hold them back for long, but she wanted to delay them long enough for reinforcement to arrive.

Caroline Edwards, Hero:

 

Second NBCLX Appearance

Interview #1: January 8.

The clip is here.

My responses, edited, here:

Q: So I want to ask you flat out: How crucial are these hearings to preserving our democracy? When it comes to protecting democracy in this country, how important are these hearings to doing that?

It is vital that the American people understand exactly what happened, why it happened, and the entire build-up to the insurrection.

Q: Now, as somebody who follows the news, I’m sure you do, too, I’ve seen many of the photos. I’ve heard a lot of the things that were played yesterday. But was there anything that shocked you? Was there anything that surprised you from yesterday’s hearings that were 2 hours long?

A: Yes. Actually, there are a few things I found very interesting

The first was that the committee claims to have direct evidence about Trump’s state of mind during that lengthy period of time he was silent while the violence was unfolding. They say they have direct testimony from witnesses who were there and who will testify that Trump was angry when people told him to call off the violence. The committee promises to present testimony that Trump said that Pence “deserved” the wrath of the mob, and Trump said that the insurrectionists were doing exactly what they were supposed to do.

Q: Yesterday you spoke with my colleague Eric and you said there was a possibility that Donald Trump could face some charges. So after yesterday’s hearing, I assume, based off what you said, that you still believe that or is that been changed in any way? Strengthened, reaffirmed.

A: I’m interested in the direct evidence that would be necessary to show, for example, that when Trump said “go fight” he actually intended for that violence to happen.

There are so many possible crimes here that I would be surprised if nothing is brought against Trump. Even something like campaign fundraising based on a lie is fraud. So if Trump knew that the election wasn’t stolen and he was using what he knew to be a lie to raise money for his campaign, that’s fraud.

Q: And what would happen if charges were brought? This is all theoretical, of course, and it depends on what those charges are, of course. But what would that change? What would it mean for our democracy if a former president was charged with whatever crime it ends up being?

It could stir up a lot of anger and be very divisive — which is one of the reasons it’s important for the American people to have a pretty good sense of what happened because unlike these congressional hearings, the purpose of a criminal trial isn’t to put the truth in front of the American people. Criminal trials have a different purpose.

Q: Was there any point, though, when you were watching these hearings when you were like, OK, is this getting politicized? I mean, inevitably, there’s going to be some political theater in all of this as well. Right?

I thought the committee did a very good job of keeping it not political. The witnesses so far are not radicalized Democrats or left-wing radicals. I mean, we saw Ivanka Trump say that she believed Barr when he said that the election was not stolen.

If Pence, William Barr, and other Trump White House insiders testify, that depoliticizes this. I mean, it’s not like these people can be painted as left-wing radicals, or even “never Trump” Republicans.

Ultimately, if Trump is brought down, it’s going to be by members of his inner circle. As I mentioned yesterday, the mob boss at the top insulates himself. If the people closest to Trump are willing to protect him, it gets very difficult to get to him. I opened by saying what surprised me is the promise of testimony from Trump’s inner circle. If Trump White House insiders people testify against Trump, that can’t be partisan.

Liz Cheney is a Republican. I thought one of her strongest statements was when she talked to her Republican colleagues and said, “One day Trump will be gone, but your dishonor will remain.”

So I thought that what they did particularly well was avoid politicizing this.

This is JJ on Thursday resting up for the first Congressional  J6 hearing:

 

One of my followers on Twitter suggested that this could also be JJ recovering from Carolyn Edwards’ testimony.